If the contest is successful it prevents the admission of the will to probate where none has been had, and revokes any probate that may have been made. Curry v. Bratney, 29 Ind. 195. 2773. (2603.) Costs.-49. If such cause be decided against the defendants therein, the court may make such orders as to the payment of the costs thereof as it may deem just. An executor should be allowed his reasonable expenses in defending a suit to contest a will. Bratney v. Curry, 33 Ind. 399. The taxation of costs is left much to the discretion of the court trying the cause. Stevens v. Stevens, 127 Ind. 560. 2774. (2604.) Clerk's duty-Revocation of probate-Costs.-50. Whenever the probate of any will shall be revoked as herein provided, the clerk of the proper court shall record such revocation in his record of wills and probate thereof, and attest the same, and shall cause a notice thereof to be served by the sheriff on the executors or admintrators with the will annexed, if letters shall have been issued, and cause notice thereof to be published for three weeks successively in a newspaper printed in his county, if one shall be printed therein; and the expenses for the record, notice, service thereof, and publication shall be taxed as a part of the costs of the proceedings against the party liable for the costs under the determination of the court in which the same shall have been finally determined. 2775. (2605.) Appeal to supreme court.-45. Any person affected by the proceedings of such court may appeal or prosecute a writ of error to the supreme court from either, and may assign errors upon matters of fact and law. Only matters of law can be assigned as error in the supreme court, as in other civil actions. Coffman v. Reeves, 62 Ind. 334. Pending an appeal from a judgment declaring a will invalid, an administrator may be appointed, and if the will is finally declared valid the executor can be reinstated. Hayes v. Hayes, 75 Ind. 395. 2776. (2606.) Opinion of supreme court.-46. The determination of such supreme court upon such writ of error or upon such appeal shall be certified back to the court from which the writ was prosecuted or the appeal taken, with directions as to what orders the court shall make in the premises. SEC. ARTICLE 4.-LOST WILLS. SEC. 2777. Record of decree establishing Effect. 2779. Proofs to establish lost will. [2 R. S. 1852, p. 308. In force May 6, 1853.] 2777. (2607.) Record of decree establishing Effect.-51. Whenever any will shall have been lost or destroyed, and the same shall have been established according to law, the decree of the court establishing such will shall be recorded in the proper book thereof, by the clerk of the proper court in which such will might have been proved if not lost or destroyed; and letters testamentary or of administration with the will annexed shall be issued thereon, in the same manner as upon wills duly proved before such court or the clerk thereof, and letters of administration previously granted upon the same estate shall be revoked; but the court before which proceedings were had to contest the validity, due execution, or to prove such will, or to establish a lost or destroyed will, shall have authority to restrain the executor or administrator in the meantime acting from any proceedings which it may judge injurious to the heirs or devisees of the deceased. In a proceeding to establish a lost or destroyed will, the complaint must allege that the will has been lost or destroyed. Kaster v. Kaster, 52 Ind. 531. No claim can be asserted under a lost or destroyed will until the same has been established as provided by law. Mauck v. Melton, 64 Ind. 414. An action may be brought to establish a lost or destroyed will, and to set aside a will that has been probated which is claimed to be invalid. Roberts v. Abbott, 127 Ind. 83. 2778. (2608.) Effect of restraining orders.-52. After the service of such restraining order, such administrator, executor, or administrator with the will annexed shall suspend all proceedings in relation to the estate of the testator, except the collection and recovery of moneys and the payment of debts, and the performance of such duties in the disposal of the property of such estate not inconsistent with the rights of the parties interested in such estate, whether the will in controversy or the probate thereof should be defeated or established, until a decision be had of such case. 2779. (2609.) Proofs to establish lost will.-53. No will of any testator shall be allowed to be proven and established as lost or destroyed, unless the same shall be proven to have been in existence at the time of the death of the testator; or be shown to have been destroyed in the life-time of the testator without his consent, or otherwise fraudulently disposed of; nor unless the provisions shall be clearly proven by two witnesses, or by a correct copy and the testimony of one witness. When it is proven or admitted that a will has been lost or destroyed, the person who wrote the same may testify as to its contents. Ford v. Teagle, 62 Ind. 61. If the testator causes his will to be recorded in the recorder's office, and it is shown that the record is a true copy of the will, such record may be used to establish a lost or destroyed will. Forbing v. Weber, 99 Ind. 588. 2780. (2610.) Record as evidence.-54. The record of the testimony taken and recorded pursuant to the provisions of this act, and exemplifications of such record by the officer in whose custody the same may be, shall be received as evidence upon any controversy concerning any lands devised by such will; and shall be of the same force and effect upon the trial of such controversy, and may be rebutted, impeached, and sustained in like manner as if taken in open court, if the witnesses examined when probate was allowed are dead, out of the state, or have become incompetent since the admission of such will to probate. SEC. ARTICLE 5.-GENERAL PROVISIONS. 2781. The term "will" construed. 2782. Act applies to all wills. SEC. 2783. Former wills not impaired. [2 R. S. 1852, p. 308. In force May 6, 1853.] 2781. (2611.) The term "will" construed.-55. The term "will," as used in this act, shall be construed to include all wills, testaments, codicils, and supplemental wills. 2782. (2612.) Act applies to all wills.-56. The provisions of this act in relation to proof and probate of wills, and the proceedings in respect to establishing or contesting the validity of any will, shall apply as well to wills made previous as to those made subsequent to the time when this act shall take effect. 2783. (2613.) Former wills not impaired.-57. Nothing contained in the provisions of this act shall be construed to impair the validity of any will made before this act shall take effect in conformity with any law in force at the time of the execution of such will. [Acts 1891, p. 377. In force June 3, 1891.] 2784. Recording in recorder's office.-1. Whenever an estate has been settled under the provisions of the last will of the deceased, and lands have been devised by such will, and the lands have not been sold to pay debts, it shall be the duty of the clerk of the court in which said estate was settled, to cause such will to be recorded in the recorder's office of the county within forty-five days from the settlement of said estate, and he shall tax and collect, as cost of said estate, a fee for the auditor and recorder equivalent to their fees for like services in the transfer and recording of deeds. 58 |